When the victim
is put on trial
By Anita Joshua
On November 12 this year,
the Union Cabinet decided to amend the Indian Evidence Act, 1872, "so
that the previous character of a rape victim in her cross-examination
is no longer relevant". A fortnight later, it was introduced in
Parliament, and the collective sense of outrage over the rape of a young
medical student in broad daylight outside her college on one of the
Capital's busiest thoroughfares should push the amendment into the law
A long pending recommendation
of two Law Commissions, the National Commission for Women (NCW), and
women's organisations, the Cabinet decision was probably taken in anticipation
of Parliament's ire over the various incidents of sexual assault on
women over the past couple of months. But, it sure gave the ruling dispensation
a face-saver when the rape of the fourth year student of the Maulana
Azad Medical College in the heart of the Capital was raised in both
Houses of Parliament in the ongoing winter session.
The Indian Evidence (Amendment)
Bill, 2002 introduced in the Lok Sabha on November 28
seeks to delete Section 155(4) of the "archaic" Indian Evidence
Act, 1872, which permits the person accused of rape or "attempt
to ravish" to prove that "the victim was of generally immoral
character". As an additional safeguard, the Amendment also provides
for insertion of a proviso to Section 146 of the same Act disallowing
the defence to adduce evidence or put questions during cross-examination
to the victim vis-a-vis previous sexual history, character or conduct.
In fact, way back in 1980,
the Law Commission of India had in its report on `Rape and Allied Offences
- Some Questions of Substantive Law, Procedure and Evidence' recommended
an amendment to Section 155(4) of the Indian Evidence Act; allowing
questions on the past sexual history of the victim only vis-a-vis the
accused. Exactly two decades later, in 2000, the Law Commission report
on `Review of Rape Laws' went the whole hog and recommended its deletion
besides insertion of the proviso to Section 146.
Then and now, the Law Commission's
contention was that unrestrained questioning of the victim could amount
to the destruction of her reputation and self-respect. This apart, the
Commission saw no reasonable connection between the offence of sexual
assault and the character of the victim.
Before and in between, several
women's organisations made representations galore to successive Governments
for the same and a series of other changes in the rape laws of the country.
While in 1983, in the wake of the Mathura case judgment which,
according to a legal study on rape by the NCW in 1999, reflected "the
insensitivity of even the judiciary to the heinous crimes against women"
a few measures including more stringent laws were introduced,
they were nowhere near the demands. "Only the tip of the iceberg
was sliced but the underlying rock remained intact, making the claims
of Constitutional guarantee of gender equality a myth," the study
Piece-meal and too little
too late, yet such has been the lot of the women's struggle for a complete
overhaul of the rape laws both substantive and procedural
that they find hope in whatever little headway they make. While the
proposed amendment to the Evidence Act has brought some relief, few
women activists find any solace in the Deputy Prime Minister, L. K.
Advani's suggestion that rapists be awarded capital punishment with
the general secretary of the All-India Democratic Women's Association
(AIDWA), Brinda Karat, dismissing it as nothing more than a "political
grandstand play and an attempt to win political applause".
For, experience and judicial
records show that courts are extremely wary of awarding maximum punishment;
let alone sentencing a person to death. In a crime where the rate of
conviction is less than four per cent, lawyers fear a death sentence
could make convictions even more difficult as the "general trend
of the judiciary is that the greater the punishment, the lesser the
If the threat of death is
such a deterrent, why has it not brought down the murder rate is the
argument of those who challenge Mr. Advani's proposal. "It is the
certainty rather than the severity of punishment that works as a deterrent,"
argues the activist-actor-cum-parliamentarian, Shabana Azmi. Add to
this the risk of further endangering the life of the victim as the rapist
could well "kill his prey" to "obliterate all evidence"
since rape and murder fetch equal punishment.
And, if the NCW study conducted
in 1999 is any indication, the national consensus is against death penalty
for rape because eight of the 16 States where workshops were conducted
by their respective State Women's Commissions and attended by politicians
and Government officials besides NGOs rejected it outright. One State
was non-committal, and even in the remaining seven States where capital
punishment for rape found some currency, it was to be applicable only
in the "rarest of rare" cases.
Based on this, the NCW Chairperson,
Poornima Advani, argues that it is not the quantum of punishment but
the certainty of punishment which is important. "Death penalty
would further reduce the conviction rate and delay judgment. A time-frame
should be worked out for rape cases to end because it is not just important
that justice is done, but is seen to be done."
On a more emotional keel
is the advocacy of a `Zakhmi Aurat' kind of reaction where the protagonist
castrates the rapists. Privately, many women feel this is the best counter
to rape. "If the victim has to live with the fact of having been
violated in this most brutal manner all her life, then the man ought
to be castrated so that he too lives with his crime till death. Death
is an easy option; instead the law should provide for castration along
While both options are bound
to be challenged by human rights activists, the studied response of
legal minds is that the need of the hour is speedy trial and assured
conviction as this will encourage victims to report cases and instil
fear in the minds of rapists.
As things stand, the system
is such that the victim "already low on self-esteem"
ends up doubting herself by being made to feel guilty of having
somehow invited the rape upon herself. And, this is not just the view
of women activists who are often dismissed as being too shrill on such
issues. This has been acknowledged in the 84th Report of the Law Commission,
which stated that "a woman who is raped undergoes two crisis
the rape and the subsequent trial". Similarly, the Supreme Court
in the 1995 Delhi Domestic Working Women's Forum vs Union of
India case described the courtroom experience for a rape victim
as "negative and destructive" and the "ordeal to be even
worse than the rape itself".
Needless to say, the amendment
to the Evidence Act will bring some relief to those victims who muster
the courage to report rape. But, rue lawyers and women activists alike,
this alone will not suffice. According to the AIDWA which submitted
a fresh draft bill to the Law Ministry as recently as early this year
there is a need to amend the laws relating to sexual assault
in Sections 375, 376, 354 and 509 of the Indian Penal Code, besides
the relevant sections of the Code of Criminal Procedure, 1973, also.
This draft, says AIDWA lawyer,
Kirti Singh, echoes views articulated by various national women's organisations
including the National Federation of Indian Women, the Centre for Women's
Development Studies, the All-India Women's Conference, the Young Women's
Christian Association and the Joint Women's Programme. Though more comprehensive,
some of the amendments suggested in the draft Bill are also in line
with the Law Commission review of rape laws and NCW recommendations.
Women's organisations may
differ on certain points, but there is a consensus on the need for broadening
the definition of rape to cover a wide range of acts of sexual violence
and marital rape; increasing the age of consent to 18; a minimum of
seven years imprisonment for rapists with the term extended to at least
ten or life in the case of custodial rape; and gender-sensitising the
procedures and reducing procedural delays.
Though much of the spadework
has been done by women's organisations and the Law Commission, the Government
refused to budge till recently. The women's delegations were apparently
told by Law Ministry bigwigs that they were asking for too many changes
and that such an overhaul would take time.
Up against the monolithic
structure that is the Government, women's organisations have simultaneously
been mounting pressure on the police to create a conducive environment
that would facilitate a victim to report a case. Despite the social
taboo attached to rape, an insensitive police mechanism, and a hostile
courtroom all of which heap further humiliation on the victim
as many as 15,264 cases of rape were reported countrywide last
year. And, 7,483 cases of rape were reported from across the country
in the first six months of this year itself.But while victims are increasingly
steeling their nerves and reporting rape knowing only too well
how high the odds are stacked against them it has taken two decades
for the system to yield; that, too, in part. Worse still, society
despite all the post-liberalisation Western influences has been
equally reluctant to shed its age-old social mores which do not allow
the victim to forget even as sensational cases like this one will fade
from the collective memory of the nation.